SWEPI, LP v. Mora Cnty.

81 F.Supp.3d 1075

SWEPI, LP, a Delaware Limited Partnership, Plaintiff

v. MORA COUNTY, NEW MEXICO; Mora County Board of County Commissioners; Paula A. Garcia, Mora County Commissioner; John P. Olivas, Mora County Commissioner; and Alfonso J. Griego, Mora County Commissioner, DefendantsandLa Merced de Santa Getrudis de Lo de Mora, a Land Grant; and Jacobo E. Pacheco, an Individual, Defendant–Intervenors.

No. CIV 14–0035 JB/SCY.

United States District Court, D. New Mexico.

Signed Jan. 19, 2015.

Bradford C. Berge, Larry J. Montaño, John C. Anderson, Michael H. Feldewert, Holland & Hart, LLP, Santa Fe, NM, for Plaintiff.

Nancy Ruth Long, Justin W. Miller, Long Komer & Associates, P.A., Santa Fe, NM, for Defendants.

Jeff H. Haas, Law Offices of Nanasi & Haas, Santa Fe, NM, for Defendants/Defendant–Intervenors.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on SWEPI's Motion for Partial Judgment on the Pleadings, filed May 31, 2014 (Doc. 21)(“Motion”). The Court held a hearing on November 3, 2014. The primary issues are: (i) whether the Court may consider evidence outside the pleadings to determine issues of justiciability; (ii) whether Plaintiff SWEPI, LP has standing to bring its claims; (iii) whether SWEPI, LP's claims are ripe; (iv) whether SWEPI, LP can bring a claim for a violation of the Supremacy Clause of article 6 of the Constitution of the United States of America; (v) whether the Mora County, N.M., Ordinance 2013–10 (2013), filed January 10, 2014 (Doc. 1–1)(“Ordinance”), violates the Supremacy Clause; (vi) whether the Ordinance violates SWEPI, LP's substantive due-process rights; (vii) whether the Ordinance violates the Equal Protection Clause of Fourteenth Amendment to the Constitution of the United States; (vii) whether the Ordinance violates the First Amendment to the Constitution of the United States; (viii) whether the Defendants have the authority to enforce zoning regulations on New Mexico state land; (ix) whether New Mexico state law preempts the entire field of oil-and-gas production; (x) whether the Ordinance conflicts with state law; and (xi) whether the valid provisions of the Ordinance can be severed from the invalid provisions. Because the Court may consider evidence outside the pleadings for issues of justiciability, the Court will consider outside evidence solely to determine standing and ripeness. SWEPI, LP has suffered an injury in fact and thus has standing to bring each of its claims. Additionally, because the Ordinance has already been enacted, and because SWEPI, LP would suffer harm if the Court delayed considering its claims, each of SWEPI, LP's claims are ripe, except for its claim under the Takings Clause of the Fifth Amendment to the Constitution of the United States. SWEPI, LP has not sought just compensation for its takings claim through a state inverse condemnation action, and, as such, it is not ripe. SWEPI, LP may bring its claim under the Supremacy Clause, because it can bring independent claims through a 42 U.S.C. § 1983 action and under the constitutional provisions that it asserts trumps the Ordinance. Also, the Ordinance violates the Supremacy Clause by conflicting with federal law, and certain provisions must be invalidated. The Ordinance does not, however, violate SWEPI, LP's substantive due-process rights, because the Defendants had a legitimate state interest for enacting the Ordinance. For the same reason, the Ordinance does not violate the Equal Protection Clause. The Ordinance violates the First Amendment by chilling protected First Amendment activities. The Defendants lack the authority to enforce zoning laws on New Mexico state lands, and thus, may not enforce the Ordinance on state lands. Because there is room for concurrent jurisdiction between state and local laws, New Mexico state law does not preempt the entire field of oil-and-gas production. The Ordinance, however, conflicts with New Mexico state law by banning hydrocarbon extraction activities, and certain provisions must be invalidated. Finally, the invalid provisions are not severable from the remaining valid provisions, and the Ordinance, in its entirety, must be invalidated. The Court will, thus, grant the Motion in part and deny it in part, and will invalidate the Ordinance.

FACTUAL BACKGROUND

In deciding a motion for judgment on the pleadings that a plaintiff filed, the Court may consider only “ ‘allegations of fact [that] are admitted or not controverted in the pleadings' ” so that “ ‘only questions of law remain to be decided by the district court.’ ” Kellar v. U.S. Dep't of Veteran's Affairs, No. CIV 08–0761 WYD/KLM, 2009 WL 1706719, at *1 (D.Colo. June 17, 2009) (Daniel, C.J.) (quoting 5C Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure: Civil § 1367 (3d ed.2004) ). The Court will, thus, in connection with this motion for judgment on the pleadings, state and consider only those facts alleged in the Complaint for Declaratory and Injunctive Relief and Damages, filed January 10, 2014 (Doc. 1)(“Complaint”), which the Defendants did not deny in the Answer to Complaint, filed March, 13, 2014 (Doc. 9)(“Answer”). The Court's previous Memorandum Opinion and Order provides a fuller statement of the allegations in the Complaint, including allegations which the Defendants deny. See SWEPI, LP v. Mora Cnty., No. CIV 14–0035 JB/SCY, 2014 WL 6983288, at *1–11 (D.N.M. Dec. 5, 2014) (Browning, J.).

1. The Parties.

SWEPI, LP filed the Complaint, seeking an injunction to prohibit the Defendants from enforcing the Ordinance and seeking monetary damages. See Complaint ¶ 2, at 2; Answer ¶ 2, at 2. SWEPI, LP entered into an oil-and-gas lease with the State of New Mexico through a lease dated August 1, 2010. See Complaint ¶ 5, at 2; Answer ¶ 5, at 2 (“Defendants admit that a copy of a lease dated August 1, 2010 between the State of New Mexico and SWEPI is attached to the Complaint as exhibit 3.”). See also Oil and Gas Lease between SWEPI LP and the State of New Mexico, dated August 1, 2010, filed January 1, 2014 (Doc. 1–3)(“Aug. 1, 2010, Lease”).¹

Mora County, New Mexico, is a political subdivision of the State of New Mexico. See Complaint ¶ 8, at 3. The Mora County Board of Commissioners is the governing body responsible for exercising the powers that the State of New Mexico has vested in Mora County. See Complaint ¶ 9, at 4. Paula A. Garcia, John P. Olivas, and Alfonso J. Griego (collectively the “Individual Commissioners”) are the three members of the Mora County Board of Commissioners. Complaint ¶¶ 10–12, at 4.

2. The Ordinance.

On April 29, 2013, the Mora County Board of County Commissioners voted two to one to adopt the “Mora County Community Water Rights and Local Self–Government Ordinance.” Ordinance 2013–01 (the “Ordinance”). Complaint for Declaratory and Injunctive Relief and Damages ¶ 1, at 1, filed January 10, 2014 (Doc. 1)(“Complaint”); id. ¶ 31, at 8. See Answer ¶ 1, at 1; id. ¶ 31, at 5.² The Ordinance, in full, provides:

WHEREAS, We, the residents in Mora County, are a multi-cultural community with indigenous roots of Many; and

WHEREAS, We recognize the Earth, water, and air as a source of life for all living in Mora County; and

WHEREAS, We are convinced that the quality of life for residents in Mora County, for both the present and the future, will be destroyed if we allow at-risk exploitation and pollution of the Earth, water, and air; and

WHEREAS, We the People of the County of Mora declare that we have the duty to safeguard the water both on and beneath the Earth's surface, and in the process, safeguard the rights of people within the county of Mora and the rights of the ecosystems of which Mora County is a part; and

WHEREAS, We the People of Mora County declare that all of our water is held in the public trust as a common resource to be used for the benefit of Mora residents and of the natural ecosystems of which they are a part. We believe that industrial use of water supplies in this county placing the control of water in the hands of a corporate few, rather than the county would constitute abuse and usurpation; and that we are therefore duty bound to oppose such abuse and usurpation. That same duty requires us to recognize that two centuries' worth of governmental conferral of constitutional powers upon corporations has deprived people of the authority to govern their own communities, and requires us to take affirmative steps to remedy that usurpation of governing power; and

WHEREAS, we are conscious of the urgency of taking decisive action to protect our collective rights and the rights of future generations, and of ensuring a balanced environment for the survival of all residents of Mora County; THEREFORE,

BE IT ORDAINED BY THE GOVERNING BODY OF MORA COUNTY, NEW MEXICO ... AN ORDINANCE PROTECTING THE RIGHT OF HUMAN COMMUNITIES, NATURE, AND NATURAL WATER, BY ESTABLISHING A LOCAL BILL OF RIGHTS FOR MORA COUNTY THAT PROTECTS THE NATURAL SOURCES OF WATER FROM DAMAGE RELATED TO THE EXTRACTION OF OIL, NATURAL GAS, OR OTHER HYDROCARBONS, BY AFFIRMING THE RIGHT TO LOCAL AUTONOMY AND SELF–GOVERNANCE, AND BY ELIMINATING LEGAL PRIVILEGES AND POWERS FROM CORPORATIONS VIOLATING THE ORDINANCE.

Section 1. Name and Purpose

Section 1.1 Name: This Ordinance shall be known and may be cited as the “Mora County Community Water Rights and Local Self–Government Ordinance.”

Section 1.2 Purpose: The People of the County of Mora are a cohesive community of diverse elements, united by common culture, social bonds and a common destiny, and are represented politically in various aspects by the Mora County Government, numerous Acequias, Land Grants and Mutual Domestic Water Consumers Associations. The People of Mora County recognize that water is essential for the life, prosperity, sustainability, and health of their community and that damage to natural groundwater and surface water sources imposes great tangible loss, to the People, natural communities and ecosystems

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